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Cable News Network Inc.'s decision to refrain from captioning videos on its website was not an act in furtherance of its protected free speech rights, the U.S. District Court for the Northern District of California ruled March 23, denying CNN's motion to dismiss an accessibility lawsuit under California's anti-SLAPP statute (Greater LA Agency on Deafness v. CNN Inc., N.D. Cal., No. 11-3458, 3/23/12).

Magistrate Judge Laurel Beeler rejected CNN's proposed application of the anti-SLAPP statute, Cal. Civ. Proc. Code §425.16(b)(1). CNN's decision not to caption the videos had no direct link to its exercise of its First Amendment rights: at that point in the process, the newsgathering and reporting had already occurred, and the plaintiffs merely wanted to access the content, the court said.

The case is more akin to Doe v. Gangland Productions Inc., 802 F.Supp.2d 1116 (C.D. Cal. 2011), than to CNN-cited cases against media organizations that dealt directly with their newsgathering and reporting, the court concluded. The Gangland court held that the anti-SLAPP statute did not apply to a scenario involving a television producer that promised a gang member that it would conceal his identity but nonetheless broadcast his face and nickname.

Like Gangland, the issue here--captioning--is not part of the underlying protected speech, the court said.

Anti-SLAPP Doesn't Reach.

California's anti-SLAPP statute provides that a cause of action arising from any act in furtherance of the person's right of petition or free speech in connection with a public issue shall be subject to a special motion to strike.

Acts in furtherance of those rights include, of relevance here, “any … conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Cal. Civ. Proc. Code §425.16(e).

CNN argued that the statute should allow any media organization to strike a claim that arises from any news media activities, because such activities are undertaken in furtherance of free speech rights.

The court disagreed. For one thing, it said, the law's legislative history does not suggest that it was intended to cover newsgathering activities across the board. The statute has added protections for media defendants against certain kinds of cases that otherwise fall beyond its scope, the court noted. To read a broad exemption for media entities into the statute “is inconsistent with ordinary concepts of fairness and would shift the burdens in any media case to plaintiffs asserting claims that the legislature never intended to target, including discrimination claims like those raised here,” the court said.

Not Protected Speech.

CNN also argued that, even if the statute could not be read so broadly, it nevertheless applies because its decision not to caption was an act of editorial discretion that is conduct in furtherance of its rights of free speech. The court also disagreed on that point.

The statute has been applied to expressive conduct and conduct leading up to speech, the court noted. For example, in Ingels v. Westwood One Broadcasting Services Inc., 129 Cal. App. 4th 1050 (Cal. Ct. App. 2005), the court applied the anti-SLAPP statute to an age discrimination claim brought by a comedian who called a call-in talk radio show geared to young singles and was screened out because of his age. The claims arose from the plaintiff's attempt to express himself in an open forum, and so implicated First Amendment rights.

In Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 38 Med.L.Rptr. 1208 (Cal. Ct. App. 2010), band members alleged that the magazine used their names in an editorial feature that appeared next to a cigarette advertisement, thereby suggesting that they endorsed the product. That claim also involved protected speech issues, because the specific acts at issue were the acts of designing and publishing the editorial feature.

Those cases, the court said, involved claims that arose from the defendants' actual speech. This case is different.

Although the cause of action would not exist if CNN did not engage in broadcast speech, that is not enough to trigger the anti-SLAPP statute, the court said. Navellier v. Sletten, 29 Cal. 4th 82 (Cal. 2002), held that the critical issue is not the cause of action, but whether the act that gave rise to the asserted liability constituted protected speech or petitioning.

“In contrast to … challenges to speech or editorial discretion about speech, Plaintiffs here do not assert a right to change CNN's broadcast or expressive content or otherwise interfere with CNN's editorial discretion[,]” the court said. The plaintiffs merely seek access to speech.

In the Gangland case, the court rejected the producer's argument that the anti-SLAPP statute applied simply because the case arose from a broadcast. The court held that the alleged breach of a promise not to disclose the plaintiff's identity was not related to newsgathering, and that the broadcast activities merely lurked in the background.

The same was true here. “The court finds the reasoning of Gangland Productions persuasive and--applied to the facts here--it reinforces the court's conclusion that CNN failed to demonstrate that Plaintiffs' claims arose from CNN's conduct in furtherance of its broadcast speech.”

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